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sumption of access. And this point has been since established by the opinion of the Judges in the case of the Banbury claim of peerage (1), in which it was held, that, where the husband and wife are not proved to be impotent, and have had opportunity of access to each other during the period, in which a child could be begotten and born in the course of nature, the presumption of legitimacy arising from the birth of the child during wedlock may be rebutted by circumstances inducing a contrary presumption: and the fact of non-access (that is, the non-existence of sexual intercourse,) as well as the fact of impotency, may always be lawfully proved by means of such legal evidence, as is strictly admissible in every other case, where a physical fact is to be proved. It has been held, that, in the case of n divorce ei mensa et thoro, a child born after such a separation is presumed to be illegitimate (2); in this case, therefore, the party, who asserts the child's legitimacy, will have to prove access.
A receipt for rent due on a certain day is strong pre- Ofpaymem. sumptive evidence, that the former rents have been regularly paid down to that time. But it is only presumptive evidence; and the other party will be allowed to prove the contrary. "If a man gives a receipt for the last rent, says Ch. B. Gilbert (3), the former is presumed to be paid, because he is supposed first to receive and take in the debts of the longest standing; especially, if the receipt be in full of all demands, then it is plain there were no debts standing out; and if this be under hand and seal, the presumption is so strong, that the law admits of no proof to the contrary." So in an action for work and labour done for the defendant, proof that the plaintiff and other workmen, who were employed by the defendant, came regularly to receive their wages from the defendant, whose practice was to pay every week, and that the plaintiff had not been heard to complain
(1) aSelw.N. P. 681. MS. (3) Gil!,. Vv. 141.
(a) Parishes of St. George v. St. arguet, I Salt 11J.
of non-payment, would be presumptive evidence of payment to meet a stale demand. (1)
So in the case of a bond, which has been suffered to lie dormant for 20 years, payment may be presumed. Forbearance for so long a time unexplained is a circumstance, from which the jury may and ought to infer, that the bond has been satisfied (2). It has been sometimes said, that payment may be presumed even within that time(3); but this is to be understood with reference only to those cases, where there has been some other evidence to raise such a presumption, as, the settling of an account in the intermediate time, without noticing any demand upon the bond (4). However, the presumption arising after such a lapse of time may be repelled by proof of the defendants' recent admission of the debt; or by proof of the payment of interest within 20 years, which is an acknowledgment that the principal sum was not then discharged (5); or the presumption may be answered by proof of other circumstances, explaining satisfactorily why an earlier demand has not been made.
With respect to the proof of the payment of interest, it may be proved by shewing an indorsement to that effect in the hand-writing of the obligor, or made by his direction; or, by an indorsement in the hand-writing of the obligee, provided it appears by extrinsic evidence, that the indorsement was made within 20 years after the money was payable, that is, at a time when it was against the interest of the obligee to make such a WTitten acknowledgment, unless the fact were true. This point, respecting an indorsement by the obligee, was determined in the case of Searle v. Lord
(0 Lucas v. Novosilienski, I Esp. (;,) I Burr. 434. Cowp. 109.
N. P. C. 296. (4) I T. R. 17I, 1. 4 Burr. 1963
(1)6 Moi11. 4 Burr. 1963. Oi- Colsel v. Budd, 1 Campb. N. P. C. 17.
wild 1. Legh, 1T. R. tyo. (5) t T. R. 170.
BarringBarrington (1), in an action by the administrator of an obligee against the administrator of the obligor. The defendant pleaded solvit ad diem, and insisted on the length of time as presumptive evidence, that the money had been paid; in answer to this, the plaintiff offered in evidence an indorsement in the hand-writing of the obligee, who died about 13 years after the date of the bond, this indorsement stating that interest had been paid 10 years after the date; and after much argument it was at length determined on a writ 01 error, that the evidence was admissible. It is not very easy to perceive the principle upon which this decision was founded. No reason is given for the admissibility of the evidence in Lord Raymond's report. According to the report in Strange, the three Judges of the court of King's Bench, who differed in opinion from the Chief Justice on the first trial, held that the indorsement ought to have been left to the jury, " because the jury might "have reason to believe, that it was done with the privity "of the obligor, and the constant practice is for the obligee "to indorse the payment of interest; and that for the sake "of the obligor, who is safer by such an indorsement, than "by taking a loose receipt." It appears indeed to be certain, that if extrinsic evidence had been produced, shewing the indorsement to have been made with the privity of the obligor, such evidence would have made it clearly admissible as in effect the obligor's indorsement; but perhaps it may deserve consideration, whether such extrinsic evidence was not previously necessary, before the indorsement could be received in evidence; for the objection against receiving the indorsement of the obligee, which the Chief Justice on the first trial thought decisive, was this, that the endorsement being in the hand-writing of the obligee, who
(l) iStra. 826 ; 2 Ld. Ray ,370 dercd and signed. On writ of csror in
R. C. Pratt, C. J. rejected the evidence the Exchequer-chamber, five Judges
on the triali but the other Judges; of thought it admi-sihle, and two Judges
K. B. held it to re admissible. On a were of the contrary opinion. This
second trial, manv years after, Lord judgment was afterwards affirmed in
Raymond C. ]. received the evidence; the House of Lords, on which a Mil of esceptiori was ten
had had the bond in his custody, and might enter what he pleased upon it, could not be evidence for him nor for his administrator, though it would have been good evidence against him. The general principle certainly is, that a person cannot make evidence for himself; what he says or writes for himself cannot be evidence in support of his right, and consequently cannot be evidence for his representative claiming in his right or place; what a party has said or done may be evidence against himself, but it can only be admitted to restrain, not to advance his interest (1). And although there are a variety of cases, in which written entries by deceased persons against their interest have been admitted as evidence of the fact there stated, (as will appear afterwards in treating of the subject of hearsay,) it is to be observed that in those cases the entries were given in evidence, not in favour of the persons who had made them, nor for their representatives, but were produced on the part of third persons, who had no concern whatever in making them. Lord Chancellor Hardwicke in one of his judgments has made some observations on this case of Searle v. Lord Barrington (2); he laid down the general principle as above stated, and then added, "As to the case of in"dorsements by an obligee of the payment of interest, it "docs not at all prove the original right to the thing in "demand. Indorsements by an obligee of the payment "of interest on a bond are evidence against that obligee "originally in the nature of the thing; and the other is only "consequential evidence to take it out of the presumption "arising from length of time, which he ought to have "the benefit of on the other hand; and in that case, I take "it, the indorsements were made and bore date within the "twenty years; for if those indorsements were dated after "the expiration of twenty years, though they were evi"dence of the actual payment of interest after that time, "they would not be evidence to take it out of that pre
(i) i Vet. 43,2. 5T.R,ia3. (1) Glynn v. Bank of England, 1Ves.
"sumption." "sumption (i)." Upon the whole, then, the oase of Searle v. Lord Barring!on must be considered as an.exception to the general principle of evidence, and as having been decided on its own peculiar circumstances; and though on the authority of that case, which underwent so much revision, an indorsement by the obligee should be considered admissible in evidence, there ought certainly to be some extrinsic evidence to prove that the indorsement was made within the 20 years. Such evidence was produced in that case; it being there proved, that the obligee, who made the indorsement, died about 13 years after the date of the bond. It will not be sufficient, that the indorsement bears date on a certain day, and purports to have been then made. That of itself proves absolutely nothing. The danger is, that the obligee may be induced to manufacture evidence for himself, for the purpose of encountering the presumption, whicb might be formed against him after his forbearance for such a length of time. Such an indorsement therefore ought to be proved by extrinsic evidence to have been written at a time, when its effect was clearly in contradiction to the writer's interest (2). Further, it should seem, if the defendant produces evidence of the payment of the principal sum and interest, the plaintiff cannot be allowed to encounter that evidence by an indorsement in his own hand-writing, purporting that interest was paid on a subsequent day ; — for supposing the fact to be true, that the bond has been satisfied by payment, it would obviously be his interest to make such an indorsement, which he. might afterwards use as evidence in an action upon the bond.
Although it may be presumed that a bond lias been satisfied after a forbearance for 20 years unexplained on the part of the obligee, yet it has been held, that, in the case of a quit-rent claimed by the lord of a manor, proof by the tenant, that no demand had been made upon him for near
(i) This point was so rul..d by (2) See Rose v. Bryant, 2 Campb. Lord R. ymond in Turner v. Crisp, 311; and Hoare and an&iher v. Coiy2 Sir. 827. ton, 4 Taunt. 360.
I 3 40 years,